A reminder from the President of the Family Division on expert evidence
On 11 October 2021, the President of the Family Division Sir Andrew McFarlane, issued a memorandum designed to explain the principles that the Family Court applies when deciding whether to admit expert evidence or permit the instruction of an expert in family proceedings. This is regardless of whether the proceedings relate to children or matrimonial finances.
The memorandum reiterates the position that experts should only be instructed when “necessary” to assist the court in resolving issues justly. There are four criteria which govern the admissibility of opinion evidence of an expert. They also govern the admissibility of expert evidence of fact, where the witness draws on the knowledge and experience of others rather than, or in addition to, personal observation.
They are :
- whether the proposed expert evidence will assist the court in its task;
- whether the witness has the necessary knowledge and experience;
- whether the witness is impartial in his or her presentation and assessment of the evidence; and
- whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.
The Family Court adopts a rigorous approach to the admission of expert evidence and pseudo-science, which is not based on any established body of knowledge, will be inadmissible in the Family Court. A copy of the memorandum can be downloaded here.
In many cases, gathering and submitting the evidence of an expert can be costly and time consuming. If expert evidence is ordered by the Court it will usually be based on the premise that the expert should be instructed on a single joint basis. This means both parties to the proceedings send a joint instruction letter and are equally responsible for the expert’s fee in producing the evidential report. As soon as it becomes clear within a case that expert evidence is likely to be required, notification of the desire to have such evidence admitted to the proceedings should be made to both the Court and to all parties to the case so a decision can be made swiftly.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Ipswich.